Category Archives: Arizona Law

Protecting the Phoenix Police While They Protect Us

It is easy to see Phoenix Police Chief Daniel Garcia has trouble with his eyesight.  The dark framed glasses line his face and aid his eyesight.

Glasses have not helped him see identify the mental health problems right in front of him during his tenure as Phoenix’s top cop.

Unlike other disabilities, mental health issues are invisible to the eye.  Anyone who looks at Chief Garcia can identify his eyesight disability because of his glasses.  Persons with mental health issues do not have that luxury.  When people look at them there is no distinguishing characteristic of their disability.  Instead people only see a seemingly normal individual.  And that normal individual may not be given any accommodations, as no one may be aware of the disability.

Only weeks ago, vocal calls in the community led to the Phoenix PD to announce the establishment of a new  mental health advisory board to help police with training methods when it comes to dealing individuals with mental health issues.  The action only came after high profile mental health calls had mixed and sometimes troubling results.  Perhaps the most troubling case was when the police on a mental health call, trying to get her to come in for treatment, killed the woman, whom they were there to help because she had a weapon and was making threats.

Now the calls are from within the Phoenix Police Department calling for Chief Garcia to resign for failing to recognize and support officers who have mental health issues.  Phoenix Police Officer Craig Tiger committed suicide recently after losing his job over a DUI arrest, reports Fox10Phoenix. Officer Tiger had been diagnosed with Post Traumatic Stress Disorder (PTSD).  He claimed an on-the-job shooting caused his PTSD, according to Fox10Phoenix.  News reports state Chief Garcia ended up firing Officer Tiger over the DUI.

Chief Garcia did not see the invisible wound his police officer had.

Others in the community just do not see it either.  The Arizona Republic’s Editorial Board argued the loss of Officer Tiger is incredibly sad, but it must not detract from the larger point that Chief Garcia is leading Phoenix PD towards integrity and respect from the community.

Perhaps, I must spell it out to the Arizona Republic’s Editorial Board. The issue is, how can we as a community expect the Phoenix Police to support persons with mental illness, if we do not support the police officers themselves who may be suffering from mental health problems.  The police have a very difficult job and encounter hazards that can take an emotional toll and in turn create mental health problems.

It is time we protect our officers, so they can protect us.

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Lawsuit Against the State of Arizona Seeks to Find Out Its Execution Protocols

Arizona is still dragging its feet at the thought of divulging its execution protocols — to anyone that asks.  Different groups across the state, including the First Amendment Coalition of Arizona, are joining forces in an interesting lawsuit arguing there is a First Amendment right for both inmates and the public to know the execution protocol.  This is a really interesting case from a public records and a constitutional perspective.

This lawsuit is a part of an on-going battle for states to reveal what methods are used in executions and arguing there is a right to know states’ execution protocols.

In recent years, states have had a difficult time procuring the drugs needed to carry out executions.  Companies own morals and public protests deterred many domestic drug manufacturers from permitting their drugs to be used in executions.  States either had to find new sources for the drugs or to find new ways to carry out the executions. See Wood v. Ryan, 759 F.3d 1076, 1101 (9th Cir. 2014).

For a while, Arizona illegally imported sodium thiopental from Great Britain.  “Thiopental is a short-acting barbiturate that was used as part of a three-drug, lethal-injection cocktail. It served as anesthesia before a paralyzing drug and a heart-stopping drug were administered. But the sole U.S. supplier of thiopental stopped producing it in 2009 because it had largely been replaced in hospitals by more modern drugs.”  Reported the AZ Republic.  Arizona then turned to a manufacturer in Great Britain that was unauthorized to export the drug.

The FDA is “permanently enjoined from permitting the entry of, or releasing any future shipments of, foreign manufactured thiopental into interstate commerce.” Beaty v. FDA, 853 F. Supp. 30 (D. D.C. 2012).

This left states like Arizona in unknown territory, searching for new procedures for carrying out executions.

Axe execution equipment

— Photo taken by: Der Vollstrecker, Flickr.

Continue reading Lawsuit Against the State of Arizona Seeks to Find Out Its Execution Protocols

Same Sex Adoption in Arizona After Latta v. Otter

Arizona’s adoption laws could be influenced by a recent civil rights cases decided by the federal appeals court holdings that same sex marriage prohibitions violate the Equal Protection Clause of the Fourteenth Amendment. See Latta v. Otter, No. 13-cv-00482 (9th Cir. Oct. 7, 2014); Baskin v. Bogan, No. 14-2386 (7th Cir. Sept. 04, 2014).

Legal analysts think there may be changes to the legal landscape in Arizona because same sex marriages are permissible in Arizona.

Adoption by same sex couples is just one area that may be impacted by the Majors ruling (which is based on the Latta v. Otter opinion), holds prohibitions on same sex marriages are unconstitutional.

Currently, Arizona law creates a preferences for a married man and woman for adoptions.  “If all relevant factors are equal and the choice is between a married man and woman certified to adopt and a single adult certified to adopt, placement preference shall be with a married man and woman.”  Ariz. Rev. Stat. § 8-103(C).

Okay, let’s clarify real quick, “[a]ny adult resident of this state, whether married, unmarried or legally separated is eligible to qualify to adopt children.”  Ariz. Rev. Stat. § 8-103(A).  Although anyone can adopt a child, the “adoption agency shall place a child in an adoptive home” that is in the best interest of the child.  Ariz. Rev. Stat. § 8-103(B).  When signing Senate Bill 1188 into law in 2011, the Arizona Legislature directed state and private agencies to place children in adopted homes which are in the best interest of the child.  But one of the potential factors gives preferential treatment to a married man and woman.  The law very specifically mentions a preference  for a married man and woman and not a married couple.

The legislative history and media reports at the time confirm the same type of equal protection concerns arise under the adoption law. “Conservative groups and other supporters of the measure said children should have every opportunity to grow up in a household with a mom and dad.” The AZ Republic reported in 2011 when the law changed to add a preference for a married couple. Furthermore, media report is corroborated by the official “House Summary, As Transmitted To The Governor.”

Now that courts have ruled Arizona laws prohibiting same sex marriages are found to violate the Fourteenth Amendment of the United States Constitution this could have a positive effect on same sex couples who choose to adopt.

Hopefully, the provision giving preference to married heterosexual couples will be changed legislatively or judicially, soon.

To allow same-sex couples to adopt children and then to label their families as second-class because the adoptive parents are of the same sex is cruel as well as
unconstitutional. Classifying some families, and especially their children, as of lesser value should be repugnant to all those in this nation who profess to believe in ‘family values.’

 — Latta v. Otter, No. 13-cv-00482, at *28 (9th Cir. Oct. 7, 2014).

Equal Protection in Arizona Same Sex Marriages – A Look at the Change in Case Law

Last week a judge struck down a same-sex marriage ban in Arizona on equal protection grounds.  The ban was created by both state law and a state constitutional amendment.  United States District Judge John Sedwick on Oct. 17, 2014 declared Ariz. Const. art. 30, § 1, Ariz. Rev. Stat. § 25-101(C), and Ariz. Rev. Stat. § 25-125(A) all violated federally protected constitutional rights.  Majors v. Horne, No. 14-cv-00518 (D. Ariz. Oct. 17, 2014) (the full opinion is available at the bottom of this article).

But this was not the first time the state laws were challenged (the Arizona Constitutional Amendment was not created at the time).  In 2003, the Arizona Court of Appeals unanimously found both Ariz. Rev. Stat. § 25-101(C), and Ariz. Rev. Stat. § 25-125(A) to be reasonable laws, and upheld them in the face of constitutional challenges. Standhardt v. Superior Court of Ariz.,77 P.3d 451 (Ariz. Ct. App. 2003) (holding Arizona’s statutory prohibition of same sex unions does not violate either the Arizona or United States Constitution). These are the same state laws Judge Sedwick ruled unconstitutional last week.

So what gives?  What has changed so much in the past eleven years to warrant a complete reversal in judicial ideology?  I am very happy for this civil rights victory for same sex couples.

How two unanimous courts could come to completely opposite viewpoints on the same set of laws, really interests me from a civil rights perspective.  I want to delve into this really interesting situation and see what happened.

Couple Gets Married After Waiting 23 Years @ Same Sex Marriage Legalized in Iowa

Photo credit: Alan C., Flickr

Continue reading Equal Protection in Arizona Same Sex Marriages – A Look at the Change in Case Law

Mental Health Call Diffused By Phoenix PD

Phoenix police handled a very difficult situation where a man who suffers from schizophrenia wanted to harm others.  According to the ABC 15 News reporting.

At one point, the man had a knife and lunged at an officer.  It is reported the police officer drew his gun and thought about using it to protect himself, he ultimately did not use it.  The situation was diffused and the man was taken in for a psychiatric evaluation.

The result was not the same in mid-August where a woman wielding a hammer was killed during a mental health call when a Phoenix police officer shot her.

Looking through the index of the Phoenix Police Department Operation Orders it appears the section Mental Health Orders Tactical Response 9.7.3.F governs how mental health calls are dealt with.

I cannot analyze or share with the readers Section 9.7.3.F because it is restricted in the copy Operation Orders I have.  As this topic is in the news a few times recently, I will file an public records request and see if I can get access to this particular provision and shed some light on how Phoenix Police are expected to dealt with mental health calls.

It is important to note, once again, the Phoenix Police estimate they serve ten mental health calls a day.  It appears the vast majority of these are handled successfully without incident, such as the present case.  The police are put in a very complex and potentially very dangerous situation when dealing with mental health calls.

One residual thought I have from both incidents is why are guns only mentioned as weapons the police used or considered?  It is curious that non-lethal options are not mentioned.  It is not clear from the news articles if non-lethal means were available or used.  The Operation Orders should be able to provide a clearer picture about this.  And I hope it is a question that can be answered.

Article – The Posse Comitatus and the Office of Sheriff: Armed Citizens Summoned to the Aid of Law Enforcement

The posse is in effect!

This is a really interesting article I came across that will be published in the near future in a prominent law journal.

I know this article was written through a Colorado lens and would be great material for my Colorado Common Law site, but here in Maricopa County, Arizona we have one of the most notorious sheriff’s — Sheriff Joe Arpaio, “America’s Toughest Sheriff.”

In 2013, Sheriff Joe Arpaio made headlines when he proposed the idea of armed Sheriff posse members to patrol schools to increase school safety.  In an ABC News story from 2013, it states that approximately 500 civilian volunteers are certified to carry a weapon as a part of Maricopa County Sheriff Posse.

Sheriff’s posses doe not receive a whole lot of attention, either in the media or legally.  This is a really interesting look at a volunteer arm of law enforcement.

The Sheriff’s posse comitatus authority to call forth armed citizens to aid law enforcement is deeply rooted in the Anglo-American legal system, originating no later than the ninth century. The posse comitatus power thrives in the twenty-first century United States. Sheriffs today use their posse comitatus power frequently, sometimes daily. This Article describes the historical roots, the modern uses, and the Second Amendment implications of posse comitatus.

The posse comitatus power does not belong exclusively to Sheriffs, but the power was originally created for them, and they remain the most frequent users. Accordingly, Part I of this Article describes the origins and history of the Office of Sheriff. This Part explains how the nature of the Anglo-Saxon office provided the foundation for the American sheriff as a constitutional officer, elected directly by the people, and enjoying great independence in the performance of his duties. Whereas police chiefs are appointed to their place within (and not at the top of) the chain of command of a city government, sheriffs are autonomous.

Part II explicates the law and history of the posse comitatus from Anglo-Saxon times to the present. The posse comitatus law of the 21st century United States is essentially the same as the posse comitatus law of England during the ninth century. The Sheriff in carrying out his duty to keep the peace in his county may summon to his aid the able-bodied adults of the county; the Sheriff has complete discretion about whom to summon and how the persons summoned shall be armed.

Part III provides a case study of the posse comitatus in modern Colorado. Posses have thwarted the escapes of criminals, including serial killer Ted Bundy. Posses also serve as citizen volunteers on a regular, structured basis; the assist the sheriffs during county fairs, weather emergencies, and hostage situations, and they perform many other duties. The most highly trained posse in Colorado is the Colorado Mounted Rangers, which provides armed assistance to many sheriffs’ offices and police departments on an as-needed basis.

Finally, Part IV considers the relation between the posse comitatus and the Second Amendment. The Second Amendment aims to foster a “well-regulated militia,” and in furtherance of this purpose, the right of all the People to keep and bear arms is safeguarded. The posse comitatus and the militia are not identical, but they overlap and are intertwined to such a degree that the disarmament of the one would inevitably destroy the other. One consequence of the Second Amendment was to ensure that the citizenry will be armed so that there can be an effective posse comitatus.

Accordingly, sheriffs and other officials who have the authority to summon the posse comitatus are intended third-party beneficiaries of the individual right to keep and bear arms. Sheriffs have proper third-party standing to defend and advocate for the Second Amendment rights of citizens in their jurisdictions.

A length Appendix summarizes the posse comitatus and related statutes which presently provide for citizens to be summoned to aid of law enforcement in almost every American state.

— David B. Kpopel, Independence Institute; Denver University – Sturm College of Law, SSRN.

 

 

Unionizing Phoenix’s Strippers

You don’t have to watch the latest Franklin and Bash episode to know that strippers sometimes get a raw deal in society.  I can’t stop to help thinking that maybe if strippers unionized it would help cure some societal ills strippers face in employment, but it could also help the community as well.

What would it be like if the strippers in Phoenix unionized?  Hhhmmmmm.

I have been playing around with this idea for a while, long before I saw the Franklin and Bash try to unionize all the exotic dancers of Los Angeles, Season 4, Episode 6.  Seriously, if all the strippers in the city of Phoenix had a union to ensure they earned at least minimum wage, discrimination is kept in check (pregnancy discrimination comes to mind), and would be protected by the National Labor Relations Board in case they wanted to strike or picket (which would be interesting) —  it could help cure a lot of problems.

*** This article is not based off of any strip club in Phoenix and is just a generalization from what I have read about in the industry.  I do not know how any of the strip clubs in Phoenix are run, I only know the applicable laws governing employment.

Gorgeous Librarians

— Photo Credit: Thomas Hawk, Flickr

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Article: Collateral Consequences of Criminal Convictions – Employment in Arizona

One of the consequences of a criminal conviction is difficulty in gaining employment the debt to society has been repaid. It is a referred to as a collateral consequence because it is not a part of the intended punishment – is a secondary effect.

A civil rights movement, known as ‘ban the box’ aims at persuading employers to remove from their hiring applications the check box that asks if applicants have a criminal record.  This article deals with the state of Arizona asking applicants if they have a prior criminal record.

Arizona law states a person shall not be removed from employment consideration by the state, unless the “offense has a reasonable relationship to the functions of the employment or occupation for which the license, permit or certificate is sought.”  Ariz. Rev. Stat. §904(E).  Deciding what offense bears a reasonable relationship to the employment is not always clear, and leaves substantial discretion to the hiring agency.

The author of the article makes the point that since so many professions require state certification, licensing, or a permit to operate, this statute touches many industries in Arizona.

Collateral consequences are hidden sanctions through federal, state and local statutes, regulations and policies that affect the rights and responsibilities of rehabilitated persons after the penalty of a criminal conviction has been completed. Collateral consequences place a continuing burden on individuals seeking a fresh start in life thereby making relief from the consequences more elusive.

Penny Wilrich, Collateral Consequences of Criminal Convictions – Employment in Arizona, SSRN Elibrary.

 

Arizona Proposes Hotels Background Checks for Employees

Arizona hotels have come under fire for potential negligent hiring of employees of who have unfettered access to rooms.  During the last two years a couple of hotels in Maricopa County have hired employees who were convicted felons, gave them access to hotel rooms, and allegedly the former employees sexually assaulted guests.

Now, a few state lawmakers are looking into whether background checks should be required for certain employees who work at hotels.

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Phoenix Apartment Complex Found Guilty of Uninhabitable Conditions

A Phoenix apartmment complex is found of uninhabitable by a city court judge.

After a non-jury trial, Judge Lori Metcalf, of the Phoenix Municipal Court found Woodbridge Apartments guilty of 385 out of 406 criminal counts.  That is a 94.8% guilty rate.  Sentencing is scheduled for September 19, 2014. Woodbridge Apartments are located at 6635 North 19th Avenue, Phoenix, Arizona.

Deputy Director of the Phoenix Department of Neighborhoods Tim Boling told ABC 15 News, “this case is probably the most extreme resistance that he has encountered in the city’s efforts to bring a property into compliance.”

This case surpasses the normal landlord-tenant issues moving into issues of basic civil rights.  No one should have to live in squalor.  It took a couple of years, but props to the City of Phoenix prosecutors for pursuing this case.

I haven’t found the legal documents anywhere else on the internet.  I thought I would share them since this is appears to be an extraordinary case for the City of Phoenix.  See the criminal findings by Judge Metcalf below.  Also, the entire civil complaints against Woodbridge Apartments from 2012 are also provided below.

Woodbridge Apartments - Phoenix, Arizona
Woodbridge Apartments – Phoenix, Arizona – Photo taken by AzCommonLaw

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